17 January, 2021

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Mega Corruption Everywhere – Real Action Nowhere ?

By Nihal Sri Ameresekere

Nihal Sri Ameresekere

Nihal Sri Ameresekere

Commencing from as far back as 1970 with the Kyoto Declaration, the process for the formulation of the UN Convention Against Corruption (UNCAC) commenced in December 2000, with the UN General Assembly resolving to establish a Committee for negotiating and formulating the UNCAC. With several subsequent Meetings, UNCAC was formulated and adopted by the UN General Assembly in October 2003, and 9th December was designated as the ‘International Anti-Corruption day’. The UNCAC came into force in December 2005, upon 30 States having ratified the same. Sri Lanka was second State to have ratified in March 2004, under Prime Minister, Ranil Wickremesinghe. As at now 177 States have become parties to the UNCAC, the Secretariat and custodian of which is the UNODC.

On the heels of the UNCAC coming into force in December 2005, mooted by UNODC the International Association of Anti-Corruption Authorities (IAACA) was inaugurated in October 2006, with the objectives of promoting and facilitating the implementation of the UNCAC. IAACA held its 8th Annual Conference in November 2015 at St. Petersburg, Russia, preceding the 6th Session of the Conference of State Parties (COSP6) to UNCAC held also at St. Petersburg. Russia recognizing the need to combat corruption, itself, is a global achievement, and reflects the pace in which this international movement against corruption is growing.

The UN ‘Universal Declaration of Human Rights’, came into force, as far back as 1948, and has thus developed in its enforcement. On the other hand, UNCAC came into force 57 years thereafter, only 10 years ago, and its development and growth is becoming, not only widespread, but also in depth, even reverberating at the highest levels of States. Sri Lanka after a lapse of several years, participated with a Delegation led by Deputy Minister of Foreign Affairs, Dr. Harsha de Silva.

UNODC Executive Director Yury Fedotov at the G-20 States Meeting in Paris in April 2011 emphatically stated thus:

“Corruption has the power to shake the very foundations of society. Even in regions where peace and prosperity prevail, corruption takes a heavy toll ….. Now it’s time for business to move beyond declarations to concrete actions ….. Anti-Corruption Action Plan provides a common approach and an opportunity for the G-20 to lead by example in the global fight against corruption ….. In October this year, the Conference of States Parties to the Convention against Corruption will meet in Marrakech, Morocco to take stock of global progress in preventing corruption …… The UN Convention against Corruption is the first legally binding global anti-corruption instrument. It obliges States to prevent and criminalize corruption, promote international cooperation, recover stolen assets and improve technical assistance and information exchange.”

Conference of State Parties in November 2015 and ‘Sustainable Development Agenda 2030’

United Nations at its Conference in Paris in September 2015 formulated a ‘Sustainable Development Agenda’ to be achieved during the 15 years by 2030. Goal No. 16 therein is to ‘promote just, peaceful and inclusive societies’. Some of the specific targets thereunder is to ‘promote the rule of law at the national and international levels and to ensure equal access to justice for all’; further significantly to ‘substantially reduce corruption and bribery in all their forms’; and also to ‘ensure public access to information and to protect fundamental freedoms’. It is in this background that the COSP6 re – the UNCAC was held in St. Petersburg, Russia in November 2015, on the conclusion of which, a Statement was released by UNODC Executive Director, Yury Fedotov.

Extracts from UNODC Chief’s Statement – November 2015

“I am pleased to address you at the closing of the Sixth Session of the Conference of the States Parties to the UN Convention against Corruption-COSP6.

Over the last five days, your discussions have done much to continue the global fight against corruption and bribery.

As I stated in my opening speech, and I wish to stress it once again, countering corruption today is necessary to achieve the sustainable development goals of tomorrow.

And our achievements in St. Petersburg this week are closely linked to the UN’s overall work. 

There have been many references to the Sustainable Development Goals and 2030 Agenda during this session. It is clear that Goal 16, which recognizes the need to address corruption, is essential to the new development agenda.

States parties are openly acknowledging that preventing corruption and bribery, and the achievement of the 2030 Agenda, are mutually reinforcing. These views underline UNCAC’s importance to the UN’s global efforts. 

This week in St. Petersburg, States Parties have agreed to launch the second cycle of reviewing the implementation of the Convention. It will start next year with looking at how countries prevent corruption and facilitate asset recovery. 

Over this last week, we have held more than 30 high-level events, as well as dozens of sessions, meetings, informals and other types of discussions.

Valuable discussions have taken place and important decisions adopted ranging from public private partnerships to addressing the needs of small island developing states, and from academic initiatives to confronting the corruption connected to wildlife and forest crime. 

Thanks to the ambitious adoption of the SDG’s the noble purpose of this Conference, and the work of the implementation review mechanism, have been given renewed purpose and energy.

UNCAC was already a highly innovative Convention, but with the new development agenda, we have been given a fresh sense of mission; one that we must not fail. 

We know that people across the world yearn for access to justice and transparent institutions, and the elimination of the corruption and bribery that makes their lives far harder and far more expensive.

In closing, ladies and Gentlemen, let me also say that COSP6 was witness to a very important event. This was the first time that a message was addressed to the conference by the UN Secretary-General at the opening session.

Allow me to quote from his statement:

“All of us have a reason to eliminate corruption and to create societies founded on justice, fairness and the rule of law.  The world counts on you to take bold decisions and act decisively to strengthen the global fight against corruption and bribery.”

As we make our return journeys, I ask you to give thought to the Secretary-General’s words and to do what is necessary to strengthen the fight against global corruption.

UNODC stands ready to support you in the work that lies ahead. Together, we can turn his stirring words into a reality that can advance the new development agenda and help millions of people.”

Articles of the UNCAC

The UNCAC applies with the equal force to the public and private sectors, where public resources are managed, either by the public sector or by the private sector. The very Index of Articles of the UNCAC set out below brings out its scope –

Articles of the Convention

1. PREAMBLE

2. CHAPTER I – GENERAL PROVISIONS
Article 1 Statement of Purpose
Article 2 Use of terms
Article 3 Scope of application
Article 4 Protection of sovereignty

3. CHAPTER II – PREVENTIVE MEASURES
Article 5 Preventive anti-corruption policies and practices
Article 6 Preventive anti-corruption body or bodies
Article 7 Public sector
Article 8 Codes of conduct for public officials
Article 9 Public procurement and management of public finances
Article 10 Public reporting
Article 11 Measures relating to the judiciary and prosecution services
Article 12 Private sector
Article 13 Participation of society
Article 14 Measures to prevent money-laundering

4. CHAPTER III – CRIMINALIZATION AND LAW ENFORCEMENT
Article 15 Bribery of national public officials
Article 16 Bribery of foreign public officials and officials of public International organizations
Article 17 Embezzlement, misappropriation or other diversion of property by a public official
Article 18 Trading in influence
Article 19 Abuse of functions
Article 20 Illicit enrichment
Article 21 Bribery in the private sector
Article 22 Embezzlement of property in the private sector
Article 23 Laundering of proceeds of crime
Article 24 Concealment
Article 25 Obstruction of justice
Article 26 Liability of legal persons
Article 27 Participation and attempt
Article 28 Knowledge, intent and purpose as elements of an offence
Article 29 Statute of limitations
Article 30 Prosecution, adjudication and sanctions
Article 31 Freezing, seizure and confiscation
Article 32 Protection of witnesses, experts and victims
Article 33 Protection of reporting persons
Article 34 Consequences of acts of corruption
Article 35 Compensation for damage
Article 36 Specialized authorities
Article 37 Cooperation with law enforcement authorities
Article 38 Cooperation between national authorities
Article 39 Cooperation between national authorities and the private sector
Article 40 Bank secrecy
Article 41 Criminal record
Article 42 Jurisdiction

5. CHAPTER IV – INTERNATIONAL COOPERATION
Article 43 International cooperation
Article 44 Extradition
Article 45 Transfer of sentenced persons
Article 46 Mutual legal assistance
Article 47 Transfer of criminal proceedings
Article 48 Law enforcement cooperation
Article 49 Joint investigations
Article 50 Special investigative techniques

6. CHAPTER V – ASSET RECOVERY
Article 51 General provision
Article 52 Prevention and detection of transfers of proceeds of crime
Article 53 Measures for direct recovery of property
Article 54 Mechanisms for recovery of property through international
cooperation in confiscation
Article 55 International cooperation for purposes of confiscation
Article 56 Special cooperation
Article 57 Return and disposal of assets
Article 58 Financial intelligence unit
Article 59 Bilateral and multilateral agreements and arrangements

CHAPTER VI – TECHNICAL ASSISTANCE AND INFORMATION EXCHANGE
Article 60 Training and technical assistance
Article 61 Collection, exchange and analysis of information on corruption
Article 62 Other measures: implementation of the Convention through
economic development and technical assistance

CHAPTER VII – MECHANISMS FOR IMPLEMENTATION
Article 63 Conference of the States Parties to the Convention
Article 64 Secretariat

CHAPTER VIII – FINAL PROVISIONS
Article 65 Implementation of the Convention
Article 66 Settlement of disputes
Article 67 Signature, ratification, acceptance, approval and accession
Article 68 Entry into force
Article 69 Amendment
Article 70 Denunciation
Article 71 Depositary and languages

Multi-Stakeholder Approach

At previous Annual Conferences having dealt in depth with the contents of the Articles of the UNCAC, the IAACA Annual Conference in November 2015 was on the theme ‘Prevention and Education’, vis-à-vis, combatting corruption; and IAACA issued a Declaration, inter-alia, calling upon State Parties to further embrace a comprehensive multi-stakeholder approach to combatting corruption, and to strengthen the dialogue between Governments, civil society, academia and the private sector, in order to garnish support for the implementation of the UNCAC, as reflected by the UNODC Chief’s Statement at the conclusion of COSP6.

At high-level discussions and sessions, the private sector’s duty and obligation to conform with the UNCAC was emphasized, with suggestions of public-private partnerships to combat the cancerous menace of corruption. Politicians from the public sector and professionals from the private sector carry a greater burden, duty and responsibility towards ensuring the conformity with the Articles of the UNCAC.

As a consequence of the development of enforcing the implementation of the UNCAC, State Parties completed the first cycle of a Implementation Review of Mechanism, where randomly selected States were reviewed by other States. Though this brings about an educative process and exchange of information between States focused on implementation of the UNCAC, it is a tragi-comedy, where a less corrupt State is reviewed by a more corrupt State ! The second cycle of the Implementation Review Mechanism is to commence. However, the results of such Implementation Review of Mechanism are not yet made public, though civil society is the appropriate sector to ensure compliance by their respective States, as demonstrated by public outcries against mega corruption by citizens in several States.

Many a Government comes to power avowing to combat fraud and corruption, but once installed in power, they get bogged down in the very quagmire of fraud and corruption, with allegations and scandals. It was encouraging to observe at the high level discussions, Delegates urging towards the creation of an International Court for civil society to hold accountable and responsible political leaders of States, who have embezzled the resources of the people, blatantly stifling Anti-Corruption Agencies, since endeavours thereafter to hold them accountable and responsible and to prosecute are seen to be thwarted by socio-political influences, partiality and political compulsions.

It is the civil society that should be called upon to play a pivotal role in the combat against fraud and corruption and to ensure the effective enforcement of the rule of law. Insatiable greed by a socio-politically powerful few to pillage and plunder the resources of the people, results in the denial to the vast multitude of the impoverished poor their dire needs of livelihood, including food, healthcare, education, housing, et al, which in effect is a violation of human rights, and needs to be so addressed. Pope Francis quoting the Bible once having pronounced that – “the necks of the corrupt persons should be tied to a rock and they be thrown into the sea”, and describing that “persons engaged in corruption appear beautiful from outside, but are full of dead bones and putrefactions inside”, His Holiness during the recent visit to Africa severely castigated corruption as further impoverishing the poor.

In a World Bank Staff Working Paper No. 580, David J. Gould and Jose A. Amaro-Reyes reported that:

“Corruption is pervasive in the countries of Asia, Africa and Latin America. The government monopoly of economic activities in developing countries, when combined with conditions of political ‘softness’, widespread poverty and socio-economic inequalities, ambivalence towards the legitimacy of government and its organisations and systematic maladministration, provide fertile grounds for corruption, which … has a deleterious, often devastating effect on administrative performance and economic and political development, for example corroding public confidence, perverting institutions’ processes and even goals, favouring the privileged and powerful few, and stimulating illegal capital export or use of non-rational criteria in public decisions.”

Nevertheless, SAARC countries enmeshed in mega corruption, at their Heads of State Summits have never dealt with the issue of corruption, whilst ironically lamenting on the poverty of the impoverished poor in the region.

The above perception that fraud and corruption was pervasive in less develop States was proven wrong by Enron and WorldCom frauds and the fall of the reputed Auditors, Arthur Anderson, resulting in the enactment of Sarbanes-Oxley Act in the US. Thereafter financial scams in 2008 in the US and Europe by supposedly respected Banks and financial institutions caused such economic impact, for Governments to step in to bail them out, with ‘stimulus’ packages, whilst leading financial institutions, such as Lehman Brothers went into bankruptcy. In December 2014 it was reported that UBS, Citigroup, JPMorgan Chase, Royal Bank of Scotland and HSBC had agreed to pay a total of US $ 3.3 billion in fines on probes among Regulators in the US and Europe.

It is the civil society agitations on a platform of major corruption allegations, which led to the installation in office of the present Government, committed to combat corruption and ensure good governance. This led to Article 46 of the Nineteenth Amendment to the Constitution, introducing Article 156A(1)(c) which stipulated that “Parliament shall by law provide for measures to implement the United Nations Convention Against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party.”

Sri Lanka has a multiplicity of non-correlated Statutes, with responsibility of enforcement by several agencies, whereby notwithstanding all the good intentions, the menace of corruption became worse. What Sri Lanka needs today, given the political commitment, is the enactment of an all-encompassing Statute to fulfill all the obligations stipulated in the Articles of the UNCAC, and a multi-disciplinary Agency for investigation and prosecution, with private expertise and foreign technical assistance drawn where necessary. This needs to be on a planned strategy, with private expertise with the education of the investigators, prosecutors, judiciary, et al, and also with the education of the public of the consequences of corruption, and the offences under such Statute, with prevention measures also put in place. All being equal before the law and ruled by the law, such investigations and prosecutions should be non-selective, regardless of the status and standing of personalities, sans any socio-political considerations. In certain States investigations and prosecutions are closely monitored through interaction of teams or by supervisory oversight and/or with review by civil society representatives.

*Nihal Sri Ameresekere, F.C.A. F.C.M.A., C.M.A., C.G.M.A., C.F.E. – Sri Lanka Co-ordinator, International Association of Anti-Corruption Authorities, Associate Member, American Bar Association, Director, International Consortium on Governmental Financial Management.

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Latest comments

  • 4
    0

    However many statutes, laws, international protocols nothing will get done unless those in power are just, honest people. The easiest way to be dishonest is to do nothing, turn a blind eye and lose the file. There are enough peons and staff around to lick your feet for a few 100 bucks.

    • 5
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      Not by laws but by the inner spirit of government said Harold Laski.

      • 3
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        CBK has said that there will be a Special Court for those charged with war crimes in January.

        Sri Lanka also needs a Special Court to fast track corruption trials of politicians, MPs and their cronies in the financial sector.

        Today the Lankan rupee is in free fall and the economy in a disaster because of the corruption of the POLITICIANS who are still in the corruption business and want free car permits and cash grants from the new budge. Reigning in corrupt politicians who distracted the people with racism and war crimes in order to loot the public purse is a bigger priority than war crimes trials which is really a means of distraction from Economic Crimes that are the root cause of the War Crimes. CORRUPTION TRIALS of POLITICIANS who use HATE SPEECH to distract people from their criminality as Mahinda Jarapassa and his brothers did the most urgent priority and will lead to recovery of the stolen billions to pay off the national debt – rather than get indebted to IMF.

    • 1
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      Nihal Sri Ameresekere

      RE: Mega Corruption Everywhere – Real Action Nowhere ?

      Yes, Mega Bucks, Mega Dollars and Mega Rupees, Thank you Yahapakanaya.

      In man, especially politicians , priests, Monks, Mullahs and Ulema, we distrust.

    • 0
      0

      Mackka, Sleep with dogs and get up with ‘makkas’. Why do
      you think they formed a national govt ? Exchanging past,
      present and future mega corruptions ! Don’t you agree ?
      That may not be the sole purpose but risk free corruption
      management is also a possibility. Sharing and caring for
      each other !

  • 5
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    Nihal, I agree with you and many others that corruption is rampant. This pestilence started during the JRJ era and has now reached unrealistic proportions. But I think the GOSL is serious about eradicating this and perhaps the Civil Groups can “hurry” them along.

    One IMPORTANT matter is that there should be no taint of corruption at the top levels of the government, and ALL issues must be addressed. While taking note of what the Bribery Commissioner has done and continues to do, she must also address the Central Bank issue, Avant Garde, etc and inform the Parliament, like a “white paper” her findings. Till people are satisfied with the explanations they will not feel it is important to stop bribing, and take bribes.

  • 3
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    “What Sri Lanka needs today, given the political commitment, is the enactment of an all-encompassing Statute to fulfill all the obligations stipulated in the Articles of the UNCAC, and a multi-disciplinary Agency for investigation and prosecution, with private expertise and foreign technical assistance drawn where necessary.”

    Absolutely! However, the question remains, do we have “the political commitment”???

    Not if what has come to pass with the nepotistic, political and ‘crony’ appointments to Parliament, Ministries, SLT, Central Bank, etc. So where do we go from here?

    Sure looks like corruption is here to stay – with our bunch of politicos what more could we expect?

  • 4
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    When there is giver of the bribe, there will always be a taker. It is as simple as that.

    You can have the best laws in the world but, if the people who are tasked with the responsibility of enforcing the law and those who supervise them are compromised, even the almighty will have a tough time. That is why entire nations were wiped out because people would not change.

    It is about social consciousness. If you are aware about littering you will not even drop a bus ticket on the street. If you do not care, the streets are your trash bins.

    Do you notice the doctors who just lost their duty free permits for cars trying to rally the rest of the public service cadres to strike, pretending they have legitimate complaints.

    Why did the budget not tax ALL their earnings other than the Health service salaries? What is so special about them? After all they have been having a free-lunch ever since 1978. Why should the private businesses bear all the burdens? If they want to migrate, please let them go and watch them trying to pass the American exams. Call their bluff and then the GMOA will come it its senses. You think Canada, Australia or Europe will give them tax-free salaries and free rides?

    And what is so special about the idiots we keep electing to parliament. If they do not have vehicles, let them buy like the rest of us paying 15% interest.

    • 4
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      Upul, you are absolutely spot-on!

      Anyone making a taxable income should pay up – including the so-called ‘Public Servants’.

      And why ALL MPs should be granted pensions is another questionable aspect of our fiscal policies. What the hell is so bloody special about their ‘service’?!!!

  • 0
    2

    Democracy must be built through open societies that share information. When there is information, there is enlightenment.

    When there is debate, there are solutions.

    When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation.

    (Atifete Jahjaga)

  • 1
    4

    Nihal you go around talking big that Ravi Karunanayaka does not do anything without asking you but why don’t you get him to do something about corruption?

    You together [Edited out]
    Your biggest client is Thilanga Sumathipala from whom you charge a monthly fee. [Edited out]

    • 4
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      This is absolute bunkum and false ! You are only discouraging persons coming forward.

      • 2
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        You are spot on Sunil. I am aware that Nihal has been more overseas than in Sri Lanka the last 1 1/2 years. I worked at Hilton. Nihal did not draw any allowance as Director or Chairman or use a vehicle. Last Chairman Tirukumar Nadesan bought a luxury vehicle for Rs 26 Mn and drew an allowance of Rs 400,000/- per month. Some make spiteful frustrated comments only try to silence people.

  • 2
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    Why not think of rehabilitation of our politician to start with immediately not the LTTE poltical prisoners.

  • 2
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    Nihal

    Yahapalanaya is no better than the MARA regime.

    The big contracts will be rolled out next year and the politicians are waiting to get their share.

    Look at the appointments todate at the following:

    SLPA
    SLIC
    SLT
    Mobitel
    Lake House
    Sri Lankan
    LITRO

    I voted for MS and RW wanting a change but extremely disappointed todate.

    I will take a bet with anyone that the following reforms announced will never be implemented :

    1 contributory pension scheme from 2016 for new govt servants
    2 cancellation of car permits
    3 pruning down the fertilizer subsidy and giving a cash voucher
    4 amalgamation of EPF and ETF

    Jagath

  • 7
    4

    Look who is talking….. You your self are an opportunistic corporate crook wearing the legal Court….. Hilton…. Getting bribes to keep your gab Shut…. etc etc……Shame on you

    • 4
      2

      Why don’t you read all the Books published by Nihal giving all the facts, without talking through your hat and slandering ?

    • 5
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      I have read some of the Books authored by Nihal Sri Ameresekere. I was amazed at the facts and conduct of leading personalities disclosed. He had been a promoter, director and shareholder of Hilton. Everybody had opposed him, but he had proved the fraud in the construction of the Hilton. Government had begged of him to settle and on his insistence, the Contractors Mitsui and Taisei had written-off Japanese Yen 17,486 million in June 1995 then equal to US $ 207 million or SL Rs. 10,200 million. At today’s value at Central Bank’s interest rates this is about around SL Rs. 90,000 million. This write-off had been 62% of the total fraudulent claims made on State Guarantees and the balance had been rescheduled over a further period of 16 years at a reduced interest. The Government took over the Hilton and has to pay compensation to Ameresekere for such huge benefit gained due to the efforts by him and his Company. This is one man’s efforts challenging the high and mighty. He is now called a corporate crook by a fool. As Lord Buddha said there is no argument with a fool. This is a huge write-off of foreign debt. Even when borrowing money the Government pays out fees and commissions as in the Central Bank’s Bond scam case.

      Privatization of Sri Lanka Insurance and Lanka Hospitals had been cancelled as a fraud by the Supreme Court because of Ameresekere’s endeavours as disclosed in an another Book. PricewaterhouseCoopers and Ernst & Young had been paid at today’s value about SL Rs. 775 million by the Government to do such privatization. Should not these fees paid to them be recovered by the Government, since the transaction had been cancelled as fraudulent by the Supreme Court, and the Government now owns Sri Lanka Insurance and Lanka Hospitals, thanks to Ameresekere’s efforts.

  • 0
    0

    In the United Kingdom, the law requires any bidder of a government contract or tender to submit a document signed by the CEO, the Chief Accountant and the Secretary of the Board of the bidding company, that no bribe or consideration was offered, asked for or given. So that is a way to keep temptaion to give or opportunity to take bribes or commissions.

  • 3
    0

    Will we ever see the uneducated Rajapaksas filth before courts of law?
    The little bogus war hero Gota who ran away for fifteen years after filling the Matara mass grave said i am not afraid of the bloody courts?
    No provided the fat Mahinda has picked all the judges?
    If Ranil is protecting the filth because of homosexual behavior let it come out in court?

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